In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 14-2604

DAVID A. SCHLEMM,

Plaintiff-Appellant,

v.

EDWARD F. WALL, Secretary, Wisconsin Department of Corrections, et al.,

Defendants-Appellees.

____________________

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 11-cv-272-wmc — William M. Conley, Chief Judge.

____________________

SUBMITTED APRIL 7, 2015 — DECIDED APRIL 21, 2015

____________________

Before EASTERBROOK, WILLIAMS, and HAMILTON, Circuit 

Judges.

EASTERBROOK, Circuit Judge. David Schlemm, a member 

of the Navajo Tribe, has been imprisoned in Wisconsin since 

1999. In this suit under the Religious Land Use and Institutionalized Persons Act (RLUIPA or the Act), 42 U.S.C.

§§ 2000cc to 2000cc–5, Schlemm seeks an order requiring the 

prison system to accommodate some of his religious practic-
2 No. 14-2604

es. The district court dismissed some of his claims for failure 

to exhaust intra-prison remedies, see 2014 U.S. Dist. LEXIS

78601 at *19–26 (W.D. Wis. June 10, 2014), and we affirm that 

aspect of the decision without any need to add to the district 

judge’s analysis. Schlemm’s arguments under the Constitution’s First and Fifth Amendments (applied to the states by 

the Fourteenth) we bypass, because the Act provides greater 

protection. But Schlemm has solid arguments on the two 

statutory claims on which he exhausted all administrative 

remedies.

Each autumn members of the Navajo Tribe celebrate a 

Ghost Feast, part of a harvest celebration that honors the 

dead through dancing, praying, and eating traditional foods. 

Wisconsin concedes that this celebration is religious in nature, and the state does not contest Schlemm’s contention 

that he sincerely believes that the “traditional foods” should 

include game meat (venison). The prison system nonetheless 

has rejected Schlemm’s request for game meat or even

ground beef to be included in Indian tacos (meat, shredded 

lettuce, tomatoes, and onions in frybread shells). Defendants 

rejected Schlemm’s offer to secure a sealed platter of acceptable game meat from an outside vendor. The prison has 

told Schlemm to use stew from the regular cafeteria line—

and this even though the prison system permits Jewish inmates to have outside vendors furnish sealed Seder platters 

for Passover and permits participants in monthly sweat 

lodge ceremonies to import packets of appropriate foods.

Defendants maintain that serving venison would be too 

expensive, would exceed the capacity of institutional kitchens (which unlike restaurants are not set up to serve individually selected meals), and would violate a statewide rule 
No. 14-2604 3

limiting prison foods to those inspected and certified by the 

United States Department of Agriculture. The prison system 

offers Kosher and Halal foods but does not allow any inmate 

to pick a particular menu (with the apparent exception of the 

Seder platters and sweat lodge packets).

The Act provides:

No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution, ... even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of 

the burden on that person—

(1) is in furtherance of a compelling governmental interest; 

and

(2) is the least restrictive means of furthering that compelling 

governmental interest.

42 U.S.C. §2000cc–1(a). The district court granted summary 

judgment to the prison system, ruling that the absence of 

venison for the Ghost Feast does not impose a “substantial 

burden” on Schlemm’s religious exercise. The court added 

that if this is wrong Schlemm still loses, because the state has 

a “compelling governmental interest” in holding down costs 

and using USDA-inspected meats, and that requiring 

Schlemm to eat whatever the kitchen is serving is the “least 

restrictive means” of furthering those interests. 2014 U.S. 

Dist. LEXIS 78601 at *30–36.

Summary judgment requires the court to take all disputed material facts in the light most favorable to the party opposing the motion. Schlemm testified by deposition that 

game meat during the Ghost Feast is important to him as a 

religious matter; declarations from other practitioners of 

Navajo rites and traditions support that view. The district 
4 No. 14-2604

court thought this inadequate to establish that lack of venison imposes a substantial burden, as we defined that phrase 

in Eagle Cove Camp & Conference Center, Inc. v. Woodboro, 734 

F.3d 673, 680 (7th Cir. 2013): to be substantial, a burden must 

be “one that necessarily bears direct, primary, and fundamental responsibility for rendering religious exercise ... effectively impracticable.” If that were the standard, then 

Schlemm would lose, for he still could dance and pray during the Ghost Feast. But two later decisions of the Supreme 

Court—Holt v. Hobbs, 135 S. Ct. 853 (2015), and Burwell v. 

Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014)—articulate a 

standard much easier to satisfy.

Holt, a Muslim confined in a state prison, believes that he 

must wear a beard. Although he believes that his faith forbids any shaving or trimming of the beard, he acknowledged the prison’s concern about hiding contraband in a 

long beard and proposed a compromise: a beard one-halfinch long. The prison rejected even that accommodation, but 

the Supreme Court held that the Act entitles Holt to have a 

short beard. It concluded among other things that Holt “easily satisfied” (135 S. Ct. at 862) the “substantial burden” requirement because shaving “seriously violates his religious 

beliefs” (ibid., quoting from Hobby Lobby). The Court did not 

ask whether a requirement to be clean-shaven would make 

adherence to Islam “effectively impracticable”, the language 

of Eagle Cove. As the Court noted in Holt, the Act covers “any 

exercise of religion, whether or not compelled by, or central 

to, a system of religious belief.” 42 U.S.C. §2000cc–5(7)(A).

Eagle Cove effectively limits the Act to those beliefs or practices that are “central” to religious beliefs; its approach did 

not survive Hobby Lobby and Holt.
No. 14-2604 5

The Supreme Court’s formulation leaves a lot of uncertainty. How is a court to tell whether a given restriction “seriously” violates or contradicts religious beliefs? What, indeed, does “seriously” mean?—more than “modestly” and 

less than “overwhelmingly,” but there’s a lot of space in that 

range. Schlemm says that inability to eat game meat at the 

Ghost Feast has a serious effect, and the record is not so lopsided as to permit that contention’s rejection on summary 

judgment. That Schlemm proposed a compromise (ground 

beef) does not scuttle his claim, any more than Holt’s proposed compromise (a short beard) did.

The parties have not joined issue on how to distinguish 

“serious” from other effects. For now it is enough to say that 

the district court erred by rejecting Schlemm’s position on 

this paper record. Only two other courts of appeals have addressed the question whether denying access to “traditional 

foods” for a religious celebration imposes a substantial burden on religion. Both reached the same conclusion we do: 

the prison system is not entitled to summary judgment. 

Haight v. Thompson, 763 F.3d 554, 564–67 (6th Cir. 2014); Abdulhaseb v. Calbone, 600 F.3d 1301, 1319–20 (10th Cir. 2010).

The district court’s fallback holding that the state has a 

“compelling” interest in the “least restrictive” way to resolve 

a request for Schlemm’s proposed accommodation is untenable. Saving a few dollars is not a compelling interest, nor is 

a bureaucratic desire to follow the prison system’s rules. The 

Act requires prisons to change their rules to accommodate 

religious practices; rules’ existence is not a compelling obstacle to change. The prison system in Holt had a rule against 

beards, but the Court deemed it an inadequate answer to the 

inmate’s request.
6 No. 14-2604

The prison system’s insistence on USDA-inspected meat 

hints at a potentially compelling justification: safe food. But 

for that justification to be “compelling” and the means “least 

restrictive,” the prison system would have to prove that (a)

all meats not inspected by the USDA are unsafe, and (b) no 

USDA-inspected venison products are available. The Court 

stressed in Holt that the prison system has the burdens of 

production and persuasion on the compelling-interest and 

least-restrictive-means defenses. The Act “requires the [prison] not merely to explain why it denied the exemption but to 

prove that denying the exemption is the least restrictive 

means of furthering a compelling governmental interest.” 

135 S. Ct. at 864. Wisconsin has not offered any evidence to 

show that no USDA-inspected game meats are available—

and the fact that venison is widely sold in supermarkets and 

served in restaurants shows that it can be safe for human 

consumption. It is difficult for us to believe that Wisconsin 

would be unable to find game meats that could be served 

without danger to the prisoners; certainly we cannot indulge 

such an assumption on an empty record.

Wisconsin fears that every prisoner would demand a religious diet that requires daily, person-specific preparation 

so expensive that in the aggregate the costs of compliance 

would be crippling and the need to avoid them “compelling.” But it has not tried to estimate what it would cost to 

honor Schlemm’s request; expense may be negligible if he 

finds a vendor to provide a sealed platter of food acceptable 

for the Ghost Feast. The prison’s willingness to allow external platters for Passover and sweat lodges makes it hard to 

credit an argument that any culinary accommodation will 

bring the prison’s administration to its knees. If the Church 

of the New Song makes a comeback (its sacraments were 
No. 14-2604 7

said to be chateaubriand and sherry), officials might have 

good reason to question the sincerity of these beliefs. See, 

e.g., Goff v. Graves, 362 F.3d 543 (8th Cir. 2004). But they do 

not question the sincerity of Schlemm’s. On this record the 

cost of accommodating Navajo inmates appears to be slight, 

and the costs of accommodating other inmates’ requests 

(should any be made) can be left to future litigation.

Schlemm exhausted his administrative remedies on a second request for accommodation. He wants to wear a multicolored headband or bandana while praying or meditating 

in his cell and during group religious ceremonies such as the 

sweat lodge. The prison allows solid white and solid black 

religious headgear, but not any other color. The district 

judge assumed that the prison’s rules impose a substantial 

burden on Schlemm’s religious practices but concluded that 

the prison’s restrictions are the least restrictive means to 

achieve its compelling interest in preventing gang members 

from identifying themselves. 2014 U.S. Dist. LEXIS 78601 at 

*36–39. Before the Act’s adoption, we sustained a prison’s 

ban on colored headgear. Young v. Lane, 922 F.2d 370, 376 

(7th Cir. 1991). The district judge thought that curtailing 

gang identification remains a compelling interest.

Once again we conclude that Wisconsin is not entitled to 

summary judgment. It has asserted a need to suppress gang 

identifications but has not offered evidence that Schlemm’s 

proposed accommodation would undermine that interest. 

The prison system does not contend that any given gang’s 

members are unaware of which other prisoners belong to the 

same gang. The ban on colored headwear apparently is designed to reduce any gang’s adherents’ ability to advertise 

their status to non-members. We say “reduce” rather than 
8 No. 14-2604

“eliminate,” because Wisconsin does not compel inmates to 

remove gang-related tattoos and has only limited ability to 

police a ban on gang-related speech and hand signals. Because gang information may be widely available already, it 

is difficult to depict as “compelling” a desire to cut out one 

potential means of identification.

More than that: Schlemm’s headband is not a plausible 

means of signaling gang membership, because he has offered to limit its use to his cell (where few other inmates will 

see it) or group religious ceremonies and to wear only colors 

not associated with any gang in the prison. He asserts, without contradiction from defendants, that red is the only gangsignifying color at the prison where he is currently confined. 

He proposes to wear a headband with earth tones (such as 

blues and greens) that no one would understand as gangrelated. On this record, we must accept Schlemm’s submissions, which if true show that the prison does not have any

interest, let alone a compelling one, in forbidding a headband that carries religious significance. The prison’s position 

is slightly better with respect to group ceremonies than with 

respect to in-cell use, but as long as the headband is free of 

any gang significations it is hard to see a “compelling” need 

to prohibit its use.

Wisconsin may be able to produce better evidence at a 

trial or undermine Schlemm’s evidentiary submissions. Because resolving his claims may require evidence that a prisoner will find it hard to obtain and present, the district court 

should seriously consider recruiting counsel to assist 

Schlemm. See Pruitt v. Mote, 503 F.3d 647 (7th Cir. 2007) (en 

banc). And pending the final resolution of this litigation, the 

court should issue a preliminary injunction entitling 
No. 14-2604 9

Schlemm to wear a headband in his cell and during religious 

ceremonies (provided that the headband does not contain 

any red), and have a supply of venison for the Ghost Feast.

The judgment is affirmed to the extent it rejects some 

claims as unexhausted and entitles two of the defendants to 

dismissal because they were not involved in the contested 

decisions. Otherwise the judgment is reversed, and the case 

is remanded for further proceedings consistent with this 

opinion.